Filing
1506

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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WAYMO LLC,
Plaintiff,
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United States District Court
Northern District of California
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Case No.17-cv-00939-WHA (JSC)
v.
UBER TECHNOLOGIES, INC., et al.,
Defendants.
ORDER RE: WAYMO'S MOTION TO
COMPEL UBER TO PRODUCE
PRIVILEGED MATERIAL
Re: Dkt. No. 1439
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Waymo seeks to compel Uber to produce material withheld on grounds of attorney-client
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and attorney work-product privilege. (Dkt. No. 1439.) Specifically, Waymo contends that Uber
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has waived any privilege as to (1) privileged communications related to Uber’s termination of
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Anthony Levandowski, (2) Uber’s analysis of whether Waymo materials ended up at Uber, and (3)
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Waymo’s inspections of Uber. Waymo’s motion is DENIED in part and GRANTED in part.
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Uber bears the burden of proving that it has not waived any privilege. Weil v.
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Investment/Indicators, Research and Management, Inc., 647 F.2d 18, 25 (9th Cir. 1981).
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“[V]oluntary disclosure of the content of a privileged attorney communication constitutes waiver
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of the privilege as to all other such communications on the same subject.” Id. at 24. Further,
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“[w]here a party raises a claim which in fairness requires disclosure of the protected
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communication, the privilege may be implicitly waived. Chevron Corp. v. Pennzoil Co., 974 F.2d
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1156, 1162 (9th Cir. 1992). For example, when a party claims that his conduct was reasonable
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because he relied on the advice of counsel, he implicitly waives the privilege as to his
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communications with counsel. See id.
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1) The Termination of Anthony Levandowski
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Two documents have been disclosed regarding the termination of Mr. Levandowski: (1) a
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May 11, 2017 letter from Uber to Mr. Levandowski confirming a decision made on April 27, 2017
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to prohibit Mr. Levandowski from working on LiDAR and also directing him to cooperate with
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Uber’s investigation, (Dkt. No. 466-2), and a May 26 letter to Mr. Levandowski terminating his
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employment with Waymo. (Dkt. No. 519-2.) Waymo does not contend that either letter is
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privileged; thus, neither is a voluntary disclosure of a privileged communication. The May 11
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letter does, however, disclose an April 27 communication. To the extent any documents are being
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withheld as to the April 27 communication to Mr. Levandowski, they shall be disclosed.
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Similarly, the May 26 letter discloses an April 20 written directive from Uber in-house counsel
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Angela Padilla to Mr. Levandowski. This communication, too, should be produced. Uber does not
address either communication, let alone meet its burden of showing why the disclosure of their
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United States District Court
Northern District of California
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contents in the May 11 and May 26 letters is not a waiver.
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Waymo’s insistence that it is entitled to all privileged communications regarding Uber’s
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efforts to get Mr. Levandowski to return Waymo’s files is unpersuasive and unsupported by
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citation to any authority. Under Waymo’s reasoning, Uber would be entitled to all of Waymo’s
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privileged communications regarding its efforts to discover if Mr. Levandowski downloaded
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Waymo’s materials. Waymo, however, has maintained that it need only disclose documents
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related to its forensic analysis (over which it has intentionally waived the privilege) and not, for
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example, its discovery analysis, even though they were all part of its efforts to learn what Mr.
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Levandowski did.
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2) Uber’s Internal Analyses
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Waymo has not identified any disclosure of privileged communications. It contends,
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instead, that Uber may have fact witnesses testify in addition to its expert. But apparently Uber
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has of now not relied on such testimony; thus, there is nothing in the record that supports a finding
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of waiver. Waymo’s speculation that Uber may attempt to rely on other analyses at trial that had
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been withheld on grounds of privilege is meritless given that the deadline to waive the privilege
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has long passed.
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3) Waymo’s Inspections of Uber
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Again, Waymo has not identified any disclosure of privileged communications by Uber.
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Nor has it identified any testimony or argument that by implication waives the privilege. No
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disclosure of privileged communications is required.
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This Order disposes of Docket No. 1439.
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IT IS SO ORDERED.
Dated: September 11, 2017
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JACQUELINE SCOTT CORLEY
United States Magistrate Judge
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United States District Court
Northern District of California
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